U.S. Supreme Court
High Court Overrules Decision Barring Questioning After Lawyer Appointment
Posted May 26, 2009 8:49 AM CST
By Debra Cassens Weiss
The U.S. Supreme Court has overruled a 23-year-old decision that bars police from questioning suspects without the presence of an appointed lawyer.
The court overturned the 1986 decision, Michigan v. Jackson, according to the Associated Press and SCOTUSblog. The Jackson ruling had held that once a suspect has asserted a right to counsel, any waiver of that right during police questioning is not valid unless the suspect initiated communication with the officers.
Justice Antonin Scalia wrote the majority decision in the 5-4 case, Montejo v. Louisiana. He said Jackson had required "voluntariness on stilts" and noted that other Supreme Court decisions protect defendants from being badgered into confessing.
Petitioner Jesse Montejo waived his Miranda rights when police questioned him in connection with the robbery and murder of the owner of a dry cleaners. He ultimately confessed to the crime. During a later preliminary hearing a judge ordered the appointment of a public defender. After another visit by detectives, Montejo wrote a letter of apology, which was introduced at his trial and challenged on appeal.
“When a court appoints counsel for an indigent defendant in the absence of any request on his part, there is no basis for a presumption that any subsequent waiver of the right to counsel will be involuntary,” Scalia wrote in the opinion (PDF).
“No reason exists to assume that a defendant like Montejo, who has done nothing at all to express his intentions with respect to his Sixth Amendment rights, would not be perfectly amenable to speaking with the police without having counsel present. And no reason exists to prohibit the police from inquiring.”
Scalia wrote that the Supreme Court has protected defendants in three other opinions:
• Miranda v. Arizona, requiring defendants to be advised of the right to a lawyer and the right against self-incrimination.
• Edwards v. Arizona, which requires police interrogation to stop once a defendant invokes his right to have counsel present.
• Minnick v. Mississippi, which bars further police interrogation without the presence of counsel after the initial request for a lawyer.
“These three layers of prophylaxis are sufficient,” Scalia wrote. “Under the Miranda-Edwards-Minnick line of cases (which is not in doubt), a defendant who does not want to speak to the police without counsel present need only say as much when he is first approached and given the Miranda warnings. At that point, not only must the immediate contact end, but ‘badgering’ by later requests is prohibited.”
“Jackson was policy driven, and if that policy is being adequately served through other means, there is no reason to retain its rule. Miranda and the cases that elaborate upon it already guarantee not simply noncoercion in the traditional sense, but what Justice Harlan referred to as 'voluntariness with a vengeance,' 384 U. S., at 505 (dissenting opinion). There is no need to take Jackson’s further step of requiring voluntariness on stilts.”
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Comments
Jade
May 29, 2009 6:39 AM CST
Isn’t it interesting how Sotomayor was lambasted for suggesting that courts of appeal make “policy,” yet Scalia in this opinion himself declares that the decision is policy-based?
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AndytheLawyer
May 29, 2009 12:09 PM CST
Jade—Conservatives aren’t ever really against judicial activism—only liberal judicial activism.
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Mike
May 29, 2009 1:55 PM CST
But how many layers of prophylaxis are required to protect civil liberties from Justice Scalia opinions?
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Charles W. Skinner
May 29, 2009 7:49 PM CST
Jade - there is a difference between making policy from the bench based on personal feelings and opinion, and trying to make action consistent when a policy has been already introduced by an outside governmental agency.
AndytheLawyer - Conservatives ARE really against judicial activism. But sometimes it takes action that can be badly mischaracterized as judicial activism (the overturning of bad or inconsistent precedent) in order to undo damage from prior courts that ignored precedent that came before THEIR decisions.
Ultimately, this doesn’t seem like a big deal. It requires a single affirmative act on the part of the accused: the request of counsel. If I understand Scalia’s comment about the Miranda-Edwards-Minnick case trilogy, the accused only has to do this ONCE, and then he or she is immunized from further questioning, or even contact, it appears, without their lawyer present.
Scalia has a point: you have a right to counsel, but it’s a right that you should have to exercise to become effective.
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Jade
May 29, 2009 8:45 PM CST
CWS—You yourself make a policy judgment in your last sentence, with the word “should.” Isn’t that a personal opinion?
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Jack
May 29, 2009 8:51 PM CST
Scalia is so dishonest and inconsistent that he is an embarassment to the Supreme Court and the United States. He is a radical idealogue without any idea of how transparent and obvious he is. He just invented his own policy which, to no one’s surprise, comes at the expense of constitutional rights of citizens. Scalia doesnt really care about the Constitution or even about right and wrong and principles of justice. He only cares about substituting his own twisted and hateful ideology for principled constituional reasoning. If I were the president, I would call on Scalia to resign for the good of the nation. Scalia doesnt deserve to be on the Supreme Court. In the entire history of the court there has never been such a dishonest and despicable judge.
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Jack the lawyer
May 29, 2009 8:54 PM CST
Antonin—you are an insult to the Supreme Court and your country. You are so transparent that you are really nothing but a bad joke. In the entire history of teh Supreme Court there has never been such a dishonest, unprincipled and despicable judge. Step down Antonin. You dont deserve your job and you dont understand your obligations.
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Adamius
May 30, 2009 8:44 AM CST
AndyTheLawyer, (in comment #2)...very well put! That would actually make a great bumper sticker!
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Charles W. Skinner
May 30, 2009 5:26 PM CST
Jade - I’m not a judge. What I think is a good or bad policy is irrelevant because I don’t have any power in implementing it. Since Marbury v. Madison, the Supreme Court has the power to implement policy via judicial review, but as a philosophical matter they shouldn’t use that power. They should rule that something is, or is not, Constitutional, or that a case should, or should not, come out a particular way based on the laws on the books at the time of the case. Nothing more, nothing less. It’s the concept of judicial restraint. Even then, Judges are entitled to have personal opinions, but their attempts to influence policy should be directed at suggesting Congress change the applicable law, not implementation of policy by judicial fiat.
It is the purview of Congress to implement changes in the law if they want to change the way those law works. Like I said above, though, sometimes undoing an activist decision by a past court requires what is badly mischaracterized on its face to be an activist act, when it is in reality simply undoing an activist decision from the past, depending on how long the precedent has been around for.
That being said, I’m a big fan of having to actively exercise right a right, because the alternative is that nobody can do anything for fear that they will accidentally tread on somebody else’s rights and then be subject to litigation or dismissal of the criminal complaint for it, regardless of the reasonableness of the action.
If you think that simply having the right not to be questioned before you have counsel is superior to actively assert your right before it becomes effective in this instance is better, the action is to advocate Congress to pass a Constitutional Amendment or the individual states to change their statutory questioning procedures.
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Jade
May 31, 2009 9:08 AM CST
CWS—Your arguments are question-begging. You say the court “should rule that something is, or is not, [c]onstitutional[.]” And how do they go about doing that? The constitution is a very vague and imprecise document. It uses open-ended terms like “equal protection” and “due process” that necessitate the creation of judicially workable standards, standards that are indeed derived from policy considerations. For instance, the entire area of freedom of speech is essentially judicially created policy, because there is no real text in the Constitution to rely upon. (The words of the First Amendment certainly provide no guidance. Read it.) Other provisions, such as those of the Fourth Amendment (important for criminal procedure issues such as the one we are discussing), are similarly unhelpful and do little on their face to allow someone to predict whether certain conduct is unconstitutional. For instance, there are seven (I think) exceptions when a law enforcement officer doesn’t need a warrant to conduct a search. You’ll be hard-pressed to find any of them in the Constitution, because they aren’t there. They were created by judges in order to reasonably accommodate the real-life demands of law enforcement. Under your definition, this is pure activism. (And since the exceptions benefit the police, it’s a rather conservative kind of activism.)
As to your comment about actively exercising a right, I think you’re missing the entire relevance of the Miranda line of cases. The aim of those cases is to ensure that defendants know their rights in the first place. They can hardly be expected to assert a right if they are not aware of their existence, and even if they believe they have the right in the abstract, the often over-bearing aggression of law enforcement officers will frighten them into submission, causing them to waive their rights. The Miranda line of cases (including the one the Court overruled) is designed to deter abuses such as these. The point is to deter police officers and thus ensure that the constitutional rights of the accused are vindicated.
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Charles W. Skinner
May 31, 2009 4:13 PM CST
Jade - I will grant you that the Constitution is a very vague and imprecise document. This is so because it was created for a very specific purpose, to detail what the Federal government could and could not do, in broad strokes, and leaving all other powers to the States and to the people respectively. The Constitution wasn’t designed to be used in the way it is being used. If Congress wants to create a uniform national standard of police questioning, they have the authority to do so under the “supremacy” clause. Barring that, it is left up to the states to decide under the 10th Amendment (but see Due Process discussion below).
As for how the First Amendment applies, actually I think that the whole line of First Amendment jurisprudence is wrong. It specifically states “Congress shall make no law . . . .” By it’s very text, how the courts have construed it is judicial activism, because they have not limited it’s reach to Congress, but have expanded it to actions by any governmental body. People often seem to forget that some of the individual States had their own established churches, which gives lie to the idea that the first amendment was supposed to apply to the states (Connecticut had an official state church until 1818, Massachusetts had an official state church until 1833).
Compare it to the text of the Second Amendment, where it says “[S]hall not be infringed” (and doesn’t specify by whom, the implication being it may not be infringed by ANYBODY, in any manner). This language has been fully ignored by everybody, but seems now to finally be being looked at. (brief side-note: Militia meant every free, white male citizen between the age of 18 and 45, and they had to bring their OWN musket or firelock for training, per the Militia Act of 1792).
Closing the loop, “Due Process” at the state level is whatever the individual state statutes say that Due Process is, in the absence of Congressional action creating a national standard or Constitutional Amendment, and also to confirm that those same laws are creating consistent results when applied to individuals who were similarly situated (the arbitrary and capricious standard).
The remedy if you didn’t like what your state was doing, and you couldn’t get sufficient members of your state populace to change the law via representative government or constitutional convention, was to move to a different state where the laws were more to your liking.
As for “Search and Seizure” under the 4th Amendment, that’s exactly what the court SHOULD be ruling on, because it specifies a “right of the people to be secure . . . against unreasonable searches and seizures, [that] shall not be violated (directly implicating both federal and state / local actors). THAT is where the court should be ruling, because the determination needs to be made as to what “is reasonalbe” (again, in the absence of Legislative statute, or even against Legislative statute IF and ONLY IF it doesn’t live up to the grant in the Constitutional Amendment).
As to the relevance of the Miranda line of cases, I agree that it is to ensure that defendants know their rights in the first place, and I think that is entirely proper that they should be informed of their rights. However, once made aware, I still submit that individuals should have to actually assert that right (at least once) in order to be protected. That the officers might frighten them into submission is simply a matter of willpower to assert a right in the face of adversity. Law Enforcement Officers lie to get confessions all the time, both about evidence, consequences and what they can offer in terms of a deal. If an individual doesn’t know that, it’s their problem. If you TRULY want to deter the abuses, advocate a duty that the officers be required to ALWAYS tell suspects the whole truth (no lies, no omissions, no fishing for admissions, etc…). I don’t think you’ll get very far, because the police know how effective lying to suspects is to get confessions, the “general public” wants to feel protected, and the general public thinks that the police know how to do that best.
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